What the Ruling of the International Court of Justice Really Means - Sanjay Shighvi

WITH the great patriotic exultation taking place over the verdict of the International Court of Justice in the case of Kulbhushan Jadhav, it merits taking a closer look at the matter. The facts of the case are simple. Kulbhushan Jadhav is admittedly a former naval officer. He was arrested near the Chabahar port in Pakistan in suspicious circumstances. He claims to have strayed into Pakistan by mistake.

The Pakistani officials say they have reason to believe that he is still a serving naval office working undercover and therefore did not prosecute him in normal courts but subjected him to court-martial. The court martial found him guilty of espionage and sentenced him to death. There are still many legal avenues open to Jadhav even under Pakistani law. He can appeal against his conviction to the Supreme Court of Pakistan or to the President of Pakistan who can overturn the decision or can commute his sentence. India can have no say in the legal process there just as the Pakistani consulate could have no say in the trial of Kasab.

In the meantime, the Indian consulate asked for access to Jadhav. There is a Vienna Convention on consular relations signed in 1963 which says that the consulate of any country will have access to any citizen of that country who is arrested in another country. The rule is that as soon as a foreign national is arrested, his consulate has to be informed of the arrest and must be given access to him. After the attacks in Mumbai in 2006, Pakistan and India had signed an agreement in 2008 by which it was agreed that terrorists would not allowed such consular access.

India approached the International Court of Justice on the plea that consular access had to be given since the Vienna convention overrides the 2008 agreement between India and Pakistan. The main argument used by Harish Salve, the counsel for India, was that the agreement between India and Pakistan was not registered with the UN. The Vienna Convention gives the ICJ jurisdiction in such matters. Pakistan, on the other hand, argued that as per the agreement, the ICJ had no jurisdiction in this matter at all.

At present, the ICJ has only ruled that they do have jurisdiction and will proceed to hear the matter on merits. As they will hear the matter, they have asked that Jadhav be not executed till the matter is heard. This is a stay that is normally granted by any appellate court when it decides to hear a matter.

The verdict is being presented as a vindication of the Indian stand on Jadhav. This is simply not true. The question of whether Jadhav is a spy or not is not even before the ICJ. The question there is only of whether he has a right to consular access. If Pakistan were to allow the Indian consulate in Pakistan to meet Jadhav there would remain no case before the ICJ and Pakistan would then be free to execute Jadhav under international law.

Even worse, India has effectively repudiated the 2008 agreement. This means that it will now have to give access to the Pakistani consulate in India to every terrorist arrested in India who is a Pakistani national. Kasab, under this stand of the Indian government, would be.

Going further, what is the status of a ruling of the ICJ? The US has consistently ignored such rulings in the past. In the matter of Sanchez-Llamas v. Oregon (548 US 331) the US Supreme Court has ruled that even evidence which was collected in violation of the Vienna Convention could be considered by the State court. In a 2008 ruling (Medellin v. Texas, 522 US 491), the Supreme Court of the USA further ruled that the decision of the ICJ directing the United States to give “review and reconsideration” to the cases of 51 Mexican convicts was not a binding domestic law and would not override state laws which did not allow further post-conviction challenges. The USA has disregarded the Vienna Convention and the rulings of the ICJ with impunity.

What will happen now? The case will go on before the ICJ. Though the question of whether Jadhav is a spy or not is not before the ICJ, Pakistan will naturally bring all the evidence it has (real or manufactured) before the ICJ. India will have no chance to contest this evidence but will be confined to arguments about whether the evidence is adequate. Pakistan can easily make the trial before the ICJ a trial of Jadhav where he has no representation. If the ICJ reaches the conclusion that there is sufficient evidence before the Pakistani court to convict him then even if consular access is granted, India will be in no position to protest the execution of Jadhav. It seems to be a diplomatic blunder committed by India only for the sake of Modi’s “spin”. 